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Nature and Scope of Jurisprudence

What is Jurisprudence?
There is no universal or uniform definition of Jurisprudence since people have different
ideologies and notions throughout the world. It is a very vast subject.

When an author talks about political conditions of his society, it reflects that condition
of law prevailing at that time in that particular society. It is believed that Romans were
the first who started to study what is law.

Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.


-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyse what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.


2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

However, Austin stuck to the idea that law is command of sovereign. The structure
of English Legal System remained with the formal analysis of law (Expositorial) and
never became what it ought to be (Censorial).

J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s extraversion.


He further said that it is a lawyer’s examination of the percept, ideas and techniques of
law in the light derived from present knowledge in disciplines other than the law.

Thus, we see that there can be no goodness or badness in law. Law is made by the State
so there could be nothing good or bad about it. Jurisprudence is nothing but the science
of law.

Definitions by:

1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws that
is laws strictly so called. It has nothing to do with the goodness or badness of law.

This has two aspects attached to it:


1. General Jurisprudence- It includes such subjects or ends of law as are common to
all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it.

Basically, in essence they are same but in scope they are different.

Salmond’s Criticism of Austin

He said that for a concept to fall within the category of ‘General Jurisprudence’, it
should be common in various systems of law. This is not always true as there could be
concepts that fall in neither of the two categories.

Holland’s Criticism of Austin

He said that it is only the material which is particular and not the science itself.

Holland’s Definition- Jurisprudence means the formal science of positive laws.


It is an analytical science rather than a material science.

1. He defined the term positive law. He said that Positive Law means the general rule
of external human action enforced by a sovereign political authority.

2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal
here means that we study only the form and not the essence. We study only the
external features and do not go into the intricacies of the subject. According to him, how
positive law is applied and how it is particular is not the concern of Jurisprudence.

3. The reason for using the word ‘Formal Science’ is that it describes only the form or
the external sight of the subject and not its internal contents. According to Holland,
Jurisprudence is not concerned with the actual material contents of law but only with its
fundamental conceptions.Therefore, Jurisprudence is a Formal Science.

4. This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form, conditions,
social life, human relations that have grown up in the society and to which society
attaches legal significance.

5. Holland said that Jurisprudence is a science because it is a systematized and


properly co-ordinated knowledge of the subject of intellectual enquiry. The
term positive law confines the enquiry to these social relations which are regulated by
the rules imposed by the States and enforced by the Courts of law. Therefore, it is a
formal science of positive law.

6. Formal as a prefix indicates that the science deals only with thepurposes, methods
and ideas on the basis of the legal system as distinct from material science which
deals only with the concrete details of law.

7. This definition has been criticized on the ground that this definition is concerned only
with the form and not the intricacies.

Salmond- He said that Jurisprudence is Science of Law. By law he meant law of


the land or civil law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.


2. Specific- This deals with the particular department or any portion of the doctrines.

‘Specific’ is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal


system existing at any time, past or the present.

2. Historical- It is concerned with the legal history and its development

3. Ethical- According to him, the purpose of any legislation is to set forth laws as it
ought to be. It deals with the ‘ideal’ of the legal system and the purpose for which it
exists.

Criticism of Salmond- Critics say that it is not an accurate definition. Salmond only
gave the structure and failed to provide any clarity of thought.

Keeton- He considered Jurisprudence as the study and systematic


arrangement of the general principles of law. According to him, Jurisprudence
deals with the distinction between Public and Private Laws and considers the contents
of principle departments of law.

Roscoe Pound- He described Jurisprudence as the science of lawusing the


term ‘law’ in juridical sense as denoting the body of principles recognized or
enforced by public and regular tribunals in the Administration of Justice.

Dias and Hughes- They believed Jurisprudence as any thought or writing


about law rather than a technical exposition of a branch of law itself.

Conclusion- Thus, we can safely say that Jurisprudence is the study of


fundamental legal principles.

Scope of Jurisprudence- After reading all the above mentioned definitions, we


would find that Austin was the only one who tried to limit the scope of
jurisprudence. He tried to segregate morals and theology from the study of
jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it includes all
human conduct in the State and the Society.

Approaches to the study of Jurisprudence- There are two ways

1. Empirical- Facts to Generalization.

2. A Priori- Start with Generalization in light of which the facts are examined.

Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers in Jurisprudence contribute to the development
of society by having repercussions in the whole legal, political and social school of
thoughts. One of the tasks of this subject is to construct and elucidate concepts serving
to render the complexities of law more manageable and more rational. It is the belief of
this subject that the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the
legal concepts and it sharpens the logical techniques of the lawyer. The study of
jurisprudence helps to combat the lawyer’s occupational view of formalism which leads
to excessive concentration on legal rules for their own sake and disregard of the social
function of the law.

3. The study of jurisprudence helps to put law in its proper context by considering the
needs of the society and by taking note of the advances in related and relevant
disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a
consideration of present social needs and not in the wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light on
basic ideas and fundamental principles of law. Therefore, by understanding the nature
of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also
helps in knowing the language, grammar, the basis of treatment and assumptions upon
which the subject rests. Therefore, some logical training is necessary for a lawyer which
he can find from the study of Jurisprudence.

6. It trains the critical faculties of the mind of the students so that they can dictate
fallacies and use accurate legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems
every day. This he can handle through his knowledge of Jurisprudence which trains his
mind to find alternative legal channels of thought.

8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the
laws passed by the legislators by providing the rules of interpretation. Therefore, the
study of jurisprudence should not be confined to the study of positive laws but also must
include normative study i.e. that study should deal with the improvement of law
in the context of prevailing socio-economic and political philosophies of
time, place and circumstances.

9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer
to bring theory and life into focus, for it concerns human thought in relation to social
existence’.

Relationship of Jurisprudence with other Social Sciences

1. Sociology and Jurisprudence- There is a branch called asSociological


Jurisprudence. This branch is based on social theories. It is essentially concerned
with the influence of law on the society at large particularly when we talk about social
welfare. The approach from sociological perspective towards law is different from a
lawyer’s perspective. The study of sociology has helped Jurisprudence in its approach.
Behind all legal aspects, there is always something social. However, Sociology of Law is
different from Sociological Jurisprudence.

2. Jurisprudence and Psychology- No human science can be described properly


without a thorough knowledge of Human Mind. Hence, Psychology has a close
connection with Jurisprudence. Relationship of Psychology and Law is established in
the branch of Criminological Jurisprudence. Both psychology and jurisprudence
are interested in solving questions such as motive behind a crime, criminal personality,
reasons for crime etc.

3. Jurisprudence and Ethics- Ethics has been defined as the science of Human
Conduct. It strives for ideal Human Behaviour. This is how Ethics and Jurisprudence
are interconnected:

a. Ideal Moral Code- This could be found in relation to Natural Law.

b. Positive Moral Code- This could be found in relation to Law as the Command of
the Sovereign.

c. Ethics is concerned with good human conduct in the light of public opinion.

d. Jurisprudence is related with Positive Morality in so far as law is the instrument to


assert positive ethics.

e. Jurisprudence believes that Legislations must be based on ethical principles. It is not


to be divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human
value.

g. A Jurist should be adept in this science because unless he studies ethics, he won’t be
able to criticize the law.

h. However, Austin disagreed with this relationship.

4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying his


wants and producing and distributing wealth. Both Jurisprudence and Economics are
sciences and both aim to regulate lives of the people. Both of them try to develop the
society and improve life of an individual. Karl Marx was a pioneer in this regard.

5. Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of
legislations and the way law has evolved. The branch is known as Historical
Jurisprudence.

6. Jurisprudence and Politics- In a politically organized society, there are


regulations and laws which lay down authoritatively what a man may and may not do.
Thus, there is a deep connected between politics and Jurisprudence.

ntroduction

We know that Law cannot be static. In order to remain relevant, Law has to grow with the
development of the society. In the same manner, the scope of law also cannot be kept static. The
result is that the definition of law is ever changing with the change in society. The definition of law
considered satisfactory today might be considered a narrow definition tomorrow. This view has been
put forward by Professor Keeton. He said that an attempt to establish a satisfactory definition of
law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually
trying to escape.

Let us study the views of Austin and Salmon on the Nature of Law.

Austin said that law is the aggregate of the rules set by men as political superior or sovereign
to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and
duty is backed by a sanction. He further said that there exists three elements in law:
a. Command
b. Duty
c. Sanction

However, Salmond defined law as the body of principles recognized and applied by the state in
the administration of justice.
Let us comeback to Austin’s definition now.

Austin’s Theory of Law or Imperative Theory of Law

As we know, according to Austin, there are three elements in law:

a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of
desire. Command is also an expression of desire which is given by a political superior to a
political inferior. The relationship of superior and inferior consists in the power which the superior
enjoys over the inferior because the superior has ability to punish the inferior for its disobedience.

He further said that there are certain commands that are laws and there are certain commands that
are not laws. Commands that are laws are general in nature. Therefore, laws are general
commands. Laws are like standing order in a military station which is to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or


persons whom a bulk of politically organized society habitually obeys and who does not
himself habitually obey some other person or persons. Perfect obedience is not a requirement.

He further goes on to classify the types of laws:


1. Divine Law- Given by god to men
2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were
societies prior to existence of sovereign and there were rules that were in prevalence. At that point of
time, there was no political superior. Law had its origin in custom, religion and public opinion. All
these so called ‘laws’ were later enforced by the political superior. Thus, the belief that sovereign is
a requirement for law has received criticism by the Historical and Sociological School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said that the laws
which were in existence prior to the existence of state were something like primitive substitutes of
law and not law. They only resembled law. Salmond gave an example. He said that apes
resemble human beings but it is not necessary to include apes if we define human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable only to
a particular domain. There are laws which are not universally applicable. Thus, laws are not always
general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects need to be
communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws
cannot be expressed as commands. Greater part of law in the system is not in the nature of
command. There are customs, traditions, and unspoken practices etc. that are equally effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a Democratic
state, laws exist not because of the force of the state but due to willing of the people. Hence, the
phrase ‘sanction’ is not appropriate in such situations. Also, there exists no sanction in Civil Laws
unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to International Law.
International Law represents law between sovereigns. According to Austin, International Law is
simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs
of the state. It comprises of various doctrines such as separation of power, division of power etc.
Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not
applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws have their
origin in religion, customs and traditions. Austin’s definition strictly excludes religion. Therefore, it is
not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and
essence. Justice is considered an end of law or law is considered a means to achieve Justice.
However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond said
that any definition of law which is without reference to justice is imperfect in nature. He
further said ‘Law is not right alone, it is not might alone, it a perfect union of the two’ and Law is
justice speaking to men by the voice of the State. According to Salmond, whatever Austin spoke
about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and
law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect definition should
include both ‘a law’ and ‘the law’.
10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we
devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin.

Merit in Austin’s Definition

Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of law
because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount truth
that law is created and enforced by the state.

Salmond’s Definition of Law

According to Salmond ‘Law may be defined as the body of principles recognized and applied
by the state in the administration of justice’. In other words, law consists of rules recognized and
acted upon by the Courts of Justice.

Salmond believed that law may arise out of popular practices and its legal character becomes patent
when it is recognized and applied by a Court in the Administration of Justice. Courts may
misconstrue a statute or reject a custom; it is only the Ruling of the Court that has the Binding Force
of Law.

He further said that laws are laws because courts enforce them. He drew a lot of emphasis on
Administration of Justice by the Courts. He was of firm belief that the true test of law
is enforceability in the courts of law.

Thus, we see that Salmond has defined law in the abstract sense. His definition brings out the
ethical purpose of law. In his definition, law is merely an instrument of Justice.

Criticism by Vinogradoff

Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with reference to
Administration of Justice inverts the logical order of ideas. The formulation of law is necessary
precedent to the administration of justice. Law has to be formulated before it can be applied
by a court of justice.

He further said that the definition given by Salmond is defective because he thinks law is logically
subsequent to administration of justice. Existence of a Rule of Law because Courts of Justice could
apply it and enforce it while deciding cases, vitiates the definition of law.

Natural Law or Moral Law


Natural Law refers to the Principles of Natural right and wrong and the Principle of Natural Justice.
Here, we must use the term ‘justice’ in the widest sense to include to all forms of rightful action.
Natural Law is also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This
law is a Command of the God imposed on Men.

Natural Law is established by reason by which the world is governed, it is an unwritten law and it has
existed since the beginning of the world and hence, is also called Eternal Law. This law is called
Natural Law as its principles are supposed to be laid down by god for the guidance of man. It is
called Rational Thought because it is based on reason. Natural Law is unwritten as we do not find it
in any type of Code. Therefore, Natural law exists only in ideal state and differs from law of a State.
Philosophy of Natural law has inspired legislation and the use of reason in formulating a System of
law.

Purpose and function of law

Society is dynamic and not static in nature. Laws made for the people are also not static in nature.
Thus, purpose and function of law also cannot remain static. There is no unanimity among theorists
as to purpose and function of law. Thus, we will study purpose and function of law in the context of
advantages and disadvantages.

1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity and certainty of administration of justice.

ii. Law is no respecter of personality and it has certain amount of certainty attached to it.

iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it
is known. It is not enough that justice should be done but it is also important that it is
seen to be done.

iv. Law protects the Administration of Justice from the errors of individual judgments. Individual
whims and fancies are not reflected in the judgment of the court that follow the Rule of Law.

b. Legislature represents the wisdom of the people and therefore a law made by the legislature is
much safer because collective decision making is better and more reliable than individual
decision making.

2. Disadvantages of law-
a. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the
people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from
them. However, in practice, law is not usually changed to adjust itself to the needs of the
people. Therefore, the lack of flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws.
This creates a situation where very often laws become static and they do not respond to the
progressive society because of the conservative nature of law.

c. Formalism of law- Most of the times, people are concerned with the technical operation of law
and not the merits of every individual case. It creates delay in the Justice Delivery system. It also
leads to injustice in certain cases.

d. Complexity of law- Sometimes, the laws are immensely intricate and complex. This causes
difficulty in Interpretation of Statutes.

3. Therefore, advantages of law are many but disadvantages are too much- Salmond.

Administration of Justice
A. Views of Theorists on the ‘Importance of Justice’-

a. Salmond- Salmond said that the ‘Definition of law itself reflects that Administration of Justice has
to be done by the state on the basis of rules and principles recognized’.

b. Roscoe Pound- He believed that it is the court who has to administer justice in a state. Both,
Roscoe Pound and Salmond emphasized upon the Courts in propounding law. However, Roscoe
Pound stressed more on the role of courts whereas Salmond stressed more on the role of the State.

B. Administration of Justice- There are two essential functions of every State:

a. War
b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned functions, it
is not a state.

Salmond said that the Administration of Justice implies maintenance of rights within a political
community by means of the physical force of the state. However orderly society may be, the
element of force is always present and operative. It becomes latent but it still exists.
Also, in a society, social sanction is an effective instrument only if it is associated with and
supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a
substitute for the physical force of the state.

Origin and Growth of the concept of Administration of Justice

It is the social nature of men that inspires him to live in a community. This social nature of men
demands that he must reside in a society. However, living in a society leads to conflict of interests
and gives rise to the need for Administration of Justice. This is considered to be the historical basis
for the growth of administration of justice.

Once the need for Administration of Justice was recognized, the State came into being. Initially, the
so called State was not strong enough to regulate crime and impart punishment to the criminals.
During that point of time, the law was one of Private Vengeance and Self-Help.

In the next phase of the development of Administration of Justice, the State came into full-fledged
existence. With the growth in the power of the state, the state began to act like a judge to assess
liability and impose penalty on the individuals. The concept of Public Enquiry and Punishment
became a reality.

Thus, the modern Administration of Justice is a natural corollary to the growth in the power of the
political state.

C. Advantages and Disadvantages of Legal Justice

a. Advantages of Legal Justice

i. Uniformity and Certainty- Legal Justice made sure that there is no scope of arbitrary action and
even the judges had to decide according to the declared law of the State. As law is certain, people
could shape their conduct accordingly.

ii. Legal Justice also made sure that the law is not for the convenience of a particular special class.
Judges must act according to the law. It is through this that impartiality has been secured in the
Administration of Justice. Sir Edward Coke said that the wisdom of law is wiser than any man’s
wisdom and Justice represents wisdom of the community.

b. Disadvantages of Legal Justice

i. It is rigid. The rate of change in the society is always more rapid than the rate of change in the
Legal Justice.
ii. Legal Justice is full of technicalities and formalities.

iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of the society, we
need complex laws.

iv. Salmond said that ‘law is without doubt a remedy for greater evils yet it brings with it evils of its
own’.

D. Classification of Justice- It can be divided into two parts

a. Private Justice- This is considered to be the justice between individuals. Private Justice is a
relationship between individuals. It is an end for which the court exists. Private persons are not
allowed to take the law in their own hands. It reflects the ethical justice that ought to exist between
the individuals.

b. Public Justice- Public Justice administered by the state through its own tribunals and courts. It
regulates the relationship between the courts and individuals. Public Justice is the means by
which courts fulfil that ends of Private Justice.

E. Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in accordance with
the law. However, it is not always justice that is rendered by the courts. This is because the judges
are not legislators, they are merely the interpreters of law. It is not the duty of the court to correct the
defects in law. The only function of the judges is to administer the law as made by the legislature.
Hence, in the modern state, the administration of justice according to law is commonly considered
as ‘implying recognition of fixed rules’.

F. Civil and Criminal Justice

Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a practical
standpoint, important distinctions lie in the legal consequences of the two. Civil Justice and Criminal
Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution or specific
decree or other such civil reliefs. However, a Criminal Proceeding usually results in punishment.
There are myriad number of punishments ranging from hanging to fine to probation. Therefore,
Salmond said that ‘the basic objective of a criminal proceeding is punishment and the usual goal of a
civil proceeding is not punitive’.

G. Theories of Punishment
a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is extremely important.
The object of punishment is not only to prevent the wrongdoer from committing the crime again but
also to make him an example in front of the other such persons who have similar criminal
tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an exemplary
punishment should be given to the criminal so that others may take a lesson from his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the people under
control, penalty protects them, and penalty remains awake when people are asleep, so the wise
have regarded punishment as the source of righteousness”. However, critics believe that deterrent
effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to prevent or disable the
wrongdoer from committing the crime again. Deterrent theory aims at giving a warning to the society
at large whereas under Preventive Theory, the main aim is to disable the wrongdoer from repeating
the criminal activity by disabling his physical power to commit crime.

c. Reformative Theory- This theory believes that Punishment should exist to reform the criminal.
Even if an offender commits a crime, he does not cease to be a human being. He might have
committed the crime under circumstances which might never occur again. Thus, the main object of
Punishment under Reformative theory is to bring about a moral reform in the offender. Certain
guidelines have been prescribed under this theory.

i. While awarding punishment, the judge should study the characteristics and the age of the offender,
his early breeding, the circumstances under which he has committed the offence and the object with
which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the exact nature of the
circumstances so that he may give a punishment which suits those circumstances.

iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the offenders, a
revolutionary change may be brought about in their character. However, the Critics say that
Reformative Theory alone is not sufficient, there must be a mix of Deterrent Theory and Reformative
Theory in order to be successful. Critics believe that in a situation of deadlock between the two
theories, the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory


1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory aims at
giving exemplary punishment so that the others are deterred from following the same course of
action.

2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh punishments.
Whereas, Reformative Theory believes that if harsh punishment is inflicted on the criminals, there
will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of the
crime. Thus, too much emphasis is given on the crime and too little on the criminal. However,
Reformative Theory takes into consideration the circumstances under which an offence was
committed. Reformative Theory further believes that every effort should be made to give a chance to
the criminal to improve his conduct in the future.

d. Retributive Theory- In primitive societies, the punishment was mostly retributive in nature and
the person wronged was allowed to have his revenge against the wrongdoer. The principle was “an
eye for an eye”. This principle was recognized and followed for a long time. Retributive theory
believes that it is an end in itself, apart from a gain to the society and the victim, the criminal should
meet his reward in equivalent suffering.

e. Theory of Compensation- This theory believes that punishment should not only be to prevent
further crime but it should also exist to compensate the victim who has suffered at the hands of the
wrongdoer. However, critics say that this theory is not effective in checking the rate of crime. This is
because the purpose behind committing a crime is always economic in nature. Asking the
wrongdoer to compensate the victim will not always lower the rate of crime though it might prove
beneficial to the victim. Under this theory, the compensation is also paid to the persons who have
suffered from the wrongdoing of the government.

H. Kinds of Punishment

a. Capital Punishment- This is one of the oldest form of punishments. Even our IPC prescribes this
punishment for certain crimes. A lot of countries have either abolished this punishment or are on
their way to abolish it. Indian Judiciary has vacillating and indecisive stand on this punishment.
There have been plethora of cases where heinous and treacherous crime was committed yet Capital
Punishment was not awarded to the criminal.

b. Deportation or Transportation- This is also a very old form of punishment. It was practised in
India during the British Rule. The criminal is put in a secluded place or in a different society. Critics
of this punishment believe that the person will still cause trouble in the society where he is being
deported.
c. Corporal Punishment- Corporal punishment is a form of physical punishment that involves the
deliberate infliction of pain on the wrongdoer. This punishment is abolished in our country but it
exists in some Middle Eastern Countries. Critics say that it is highly inhuman and ineffective.

d. Imprisonment- This type of punishment serves the purpose of three theories, Deterrent,
Preventive and Reformative.

i. Under Deterrent Theory, it helps in setting an example.

ii. It disables the offender from moving outside, thus serving the purpose of Preventive Theory.

iii. If the government wishes to reform the prisoner, it can do so while the person is serving his
imprisonment, thus serving the purpose of Reformative Theory.

e. Solitary Confinement- Solitary confinement is a form of imprisonment in which a prisoner is


isolated from any human contact. It is an aggravated form of punishment. It is said that it fully
exploits and destroys the sociable nature of men. Critics say that it is inhuman too.

f. Indeterminate Sentence- In such a sentence, the accused is not sentenced for any fixed period.
The period is left indeterminate while awarding and when the accused shows improvement, the
sentence may be terminated. It is also reformative in nature.

Sources of Law

Analytical Positivist School of Thought- Austin said that the term ‘source of law’has three
different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in the
country.

2. This term refers to the historical document from which the body of law can be known.

3. This term refers to the causes that have brought into existence the rules that later on acquire the
force of law. E.g. customs, judicial decision, equity etc.

Historical Jurists- Von Savigny, Henrye Maine, Puchta etc. – This group of scholars believed
that law is not made but is formed. According to them, the foundation of law lies in the common
consciousness of the people that manifests itself in the practices, usages and customs followed by
the people. Therefore, for them, customs and usages are the sources of law.

Sociological Jurists- This group of scholars protest against the orthodox conception of law
according to which, law emanates from a single authority in the state. They believe that law is
taken from many sources and not just one.

Ehlrich said that at any given point of time, the centre of gravity of legal development lies not in
legislation, not in science nor in judicial decisions but in the society itself.

Duguit believed that law is not derived from any single source as the basis of law is public service.
There need not be any specific authority in a society that has the sole authority to make laws.

Salmond on Sources of Law- Salmond has done his own classification of sources of law:

1. Formal Sources- A Formal Source is as that from which rule of law derives its force and
validity. The formal source of law is the will of the state as manifested in statutes or decisions of
the court and the authority of law proceeds from that.

2. Material Sources- Material Sources are those from which is derived the matter though not the
validity of law and the matter of law may be drawn from all kind of material sources.

a. Historical Sources- Historical Sources are rules that are subsequently turned into legal
principles. Such source are first found in an Unauthoritative form. Usually, such principles are not
allowed by the courts as a matter of right. They operate indirectly and in a mediatory manner. Some
of the historical sources of law are:

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are
created for e.g. legislation and custom. They are authoritative in nature and are followed by the
courts. They are the gates through which new principles find admittance into the realm of law.
Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to historical sources. According
to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State cannot
be considered as a source of law. However, according to Salmond, a statute is a legal source which
must be recognized. Writings of scholars such Bentham cannot be considered as a source of law
since such writings do not have any legal backing and authority.

Legal sources of English Law- There are two established sources of English Law:

1. Enacted Law having its source in legislation- This consists of statutory law. A Legislation is
the act of making of law by formal and express declaration of new rules by some authority in
the body politic which is recognized as adequate for that purpose.

2. Case Law having source in Judicial Precedence- It consists of common law that we usually
read in judgments and law reporters. Precedent could also be considered as a source of law as a
precedent is made by recognition and application of new rules by the courts whilst administering
justice. Thus, Case Laws are developed by the courts whereas enacted laws come into the court ab
extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law.
Though, they are not much accepted.
Sources of Law: Are they sources of Right too?

A Legal Right means a fact that is legally constitutive of a right. A Right is the de factoantecedent of
a legal right in the same way as a source of law is de facto antecedent of a legal principle.

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists
have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is a statute and
legislation is the normal source of law making. The majority of exponents of this school do not
approve that the courts also can formulate law. They do not admit the claim of customs and
traditions as a source of law. Thus, they regard only legislation as the source of law.

Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form and
effectuate the customs and traditions that are spontaneously developed by the people. Thus, they
do not regard legislation as source of law.

Types of Legislation
1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the
sovereign power of the state. It cannot be repealed, annulled or controlled by any other legislative
authority.

2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign
power and is dependant for its continual existence and validity on some superior authority.

Delegated Legislation- This is a type of subordinate legislation. It is well-known that the main
function of the executive is to enforce the law. In case of Delegated Legislation, executive frames
the provisions of law. This is also known as executive legislation. The executive makes laws in the
form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the power to
make subordinate legislation is usually derived from existing enabling acts. It is fundamental that the
delegate on whom such power is conferred has to act within the limits of the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come after
enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control

2. Parliamentary Supervision

Indirect Forms of Control


1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate enactments
but they can declare them inapplicable in special circumstances. By doing so, the rules framed do
not get repealed or abrogated but they surely become dead letter as they become ultra vires and no
responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting
power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can be
complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will definitely
minimize the dangers of enacting a vague legislation.

Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate any
legislative measure or provision that has become meaningless or ineffective in the changed
circumstances. Legislature can repeal a law with ease. However, this is not the situation with courts
because the process of litigation is a necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of functions. Legislature


can make a law by gathering all the relevant material and linking it with the legislative measures that
are needed. In such a process, legislature takes help of the public and opinion of the experts. Thus,
public opinion also gets represented in the legislature. This cannot be done by the judiciary since
Judiciary does not have the resources and the expertise to gather all the relevant material regarding
enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is


because legislations are made applicable to only those that come into existence once the said
legislation has been enacted. Thus, once a legislation gets enacted, the public can shape its conduct
accordingly. However, Judgments are mostly retrospective. The legality of any action can be
pronounced by the court only when that action has taken place. Bentham once said that “Do you
know how they make it; just as man makes for his dog. When your dog does something, you want to
break him off, you wait till he does it and beat him and this is how the judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she is in
constant interaction with all sections of the society. Thereby, opportunities are available to him
correct the failed necessities of time. Also, the decisions taken by the legislators in the Legislature
are collective in nature. This is not so in the case of Judiciary. Sometimes, judgments are based on
bias and prejudices of the judge who is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and explanations
whereas Judicial Pronouncements are usually circumscribed by the facts of a particular case for
which the judgment has been passed. Critics say that when a Judge gives Judgment, he makes
elephantiasis of law.

Difference between Legislation and Customary Law

1. Legislation has its source in theory whereas customary law grows out of practice.

2. The existence of Legislation is essentially de Jure whereas existence of customary law is


essentially de Facto.

3. Legislation is the latest development in the Law-making tendency whereas customary law is the
oldest form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.
5. Legislation expresses relationship between man and state whereas customary law expresses
relationship between man and man.

6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is the outcome of
necessity, utility and imitation.

Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the politicians”. A judge is
impartial. Therefore, he performs his work in an unbiased manner.

2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law suffers
from the defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the
law.”

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own importance as a
constitutive element in the making of law although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law is judge made
law. In truth all the law is judge made law, the shape in which a statute is imposed on the community
as a guide for conduct is the statute as interpreted by the courts. The courts put life into the dead
words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a document
having a form according to the intent of them that made it”.
5. Salmond said that “the expression will of the legislature represents short hand reference to the
meaning of the words used in the legislature objectively determined with the guidance furnished by
the accepted principles of interpretation”.

Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High
Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate courts
and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd. v.
Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority, then the
weight should be given on the basis of rational and logical reasoning and we should not bind
ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger bench
should be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the courts. However,
after 19th century, courts started to believe that precedence not only has great authority but must be
followed in certain circumstances. William Searle Holdsworth supported the pre-19th century
meaning of the precedence. However, Goodheart supported the post-19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the law,
but they ‘declare’ what the law has always been. This theory believes that the Principles of Equity
have their origin in either customs or legislation. However, critics of this theory say that most of the
Principles of Equity have been made by the judges and hence, declaratory theory fails to take this
factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or not.
They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to them.
They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent. There
are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court loses its
relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment.
7. Erroneous Decision

Custom as a Source of Law

Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by the
courts and applied as a source of law because they are generally followed by the political society as
a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law which
got its content from habits of popular action recognized by courts, or from habits of judicial
decision, or from traditional modes of juristic thinking, was merely an expression of
the jural ideas of the people, of a people’s conviction of right – of its ideas of right and of rightful
social control.

However, it is the Greek historical School that is considered as the innovator of custom as source of
law.
Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human association
becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a conception
posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity

2. Continuous in nature.

3. Peaceful Enjoyment

4. Obligatory Force

5. Certainty

6. Consistency

7. Reasonableness

Statutory Interpretation

1. Rule of Literal Construction- ‘The first and most elementary rule of construction is that it is
to be assumed that the words and phrases of technical legislations are used in their technical
meaning if they have acquired one, and otherwise in the ordinary meaning, and the second is
that the phrases and sentences are to be constructed according to the rules of grammar’.
Therefore, it is desirable to adhere to the words of the Act of the Parliament giving to them the sense
which is their natural import in the order in which they are placed[1]. The length and detail of modern
legislation has undoubtedly reinforced the claim of Literal Construction as the only safe rule[2].

2. Mischief Rule or Purposive Construction- When the true intention of the legislature cannot be
determined by the language of the statute in question, it is open to the court to consider the historical
basis underlying the statute. The court may consider the circumstances that led to the introduction of
the bill, also to the circumstances in which it became the law. However, when judges are allowed to
probe into questions of policy in interpreting statutes, there is bound to be some uncertainty. It is
maintained that the judges may look at the law prevailing before the enactment of the Act and the
mischief in the law that the statute sought to remedy. The act is to be construed in such a manner
as to suppress the mischief and advance the remedy. This rule is known as Mischief Rule.
The Heydon’s Case laid down following considerations while construing an Act:

a. What was the common law before the making of the Act?
b. What was the mischief or defect for which the common law did not provide?
c. What remedy the Parliament hath resolved and appointed to cure the disease?
d. What is the true reason of the remedy?

And then the office of all the judges is always to make such construction as shall suppress the
mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance
of the mischief, and pro private commando, and to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico[3].

Smith v. Hughes[4]- Lord Justice Parker tried to find out mischief in the Street Offences Act, 1959.
Under the Street Offences Act, it was a crime for prostitutes to “loiter or solicit in the street for the
purposes of prostitution”. The defendants were calling to men in the street from balconies and
tapping on windows. They claimed they were not guilty as they were not in the “street”. The judge
applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act
was to cover the mischief of harassment from prostitutes.

3. Golden Rule- It is a modified version of the Rule of Literal Construction. Although it is useful to
adhere to the literal rule of construction, yet if the ordinary meaning is at variance with the intention
of the legislature, it is to be collected from the statute itself. If it leads to manifest absurdity or
repugnance, the language may be varied to avoid such inconvenience. Secondly, if the language is
capable of more than one interpretation, one ought to discard the more natural meaning if it leads to
absurdity and adopt that interpretation that leads to a practicable and reasonable result. Therefore,
court when faced with two possible constructions of legislative language, looks at the result by
adopting each of the alternatives in the quest for ascertaining the true intention of the parliament.
Thus, the Golden Rule is that the words of a statute must prima facie be given their ordinary
meaning “unless it can be shown that the legal context in which the words are used requires
a different meaning”.

4. construction ut res magis valeat quam pereat- The Courts strongly lean against a construction
which reduces the statute to a futility. A statute or any enacting provision therein must be so
construed as to make it effective and operative “. It is an application of this principle that courts while
pronouncing upon the constitutionality of a statute start with a presumption in favour of
constitutionality and prefer a construction which keeps the statute within the competence of the
legislature[5].
Where alternative constructions are equally open that alternative is to be chosen which will be
consistent with the smooth working of the system which the statute purports to be regulating; and
that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working
of the system[6]. Therefore, in accordance with these principles, the courts should avoid
interpretations which would leave any part of the law to be interpreted without affect. The courts will
not narrow down the enactments but it may give a wide sense to the words in the statute.

5. Rule of Beneficial Construction- If a section in a remedial statute is reasonably capable of two


constructions that construction should be preferred which furthers the policy of the act and is more
beneficial to those in whose interest the act may have been passed; and the doubt, if any, should be
resolved in their favour. So in case of an exception which curtails the operation of beneficent
legislation, the court, in case of doubt, would construe it narrowly so as not to unduly expand the
area or scope of operation. The court will also not readily read words which are not there and
introduction of which will restrict the rights of persons for whose benefit the statute is intended.

The construction of a statute must not so strain the words as to include cases plainly omitted from
the natural meaning of the language. Therefore, Beneficial Construction is a way of relaxing the strict
principles of interpretation and that is the reason why it is called beneficial construction.

6. Restricted Construction- Before adopting any proposed construction of a passage susceptible


of more than one meaning, it is important to consider the effects or consequences which would
result from it, for they often point out the real meaning of the words. There are certain objects which
the legislature is presumed not to intend, and a construction which would lead to any of them is
therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words
contained in an enactment (especially general words), and sometimes to depart, not only from their
primary and literal meaning, but also from the rules of grammatical construction in cases where it
seems highly improbable that the words in their wide primary or grammatical meaning actually
express the real intention of the legislature. It is regarded as more reasonable to hold that the
legislature expressed its intention in a slovenly manner, than that a meaning should be given to them
which could not have been intended.

Sometimes the meaning of words is so plain that effect must be given to them regardless of the
consequences; but more often a construction should be adopted with due regard to the
consequences which must follow it[7].
7. Construction to avoid collision with other provisions- If two sections of an Act cannot be
reconciled, as they may be absolute contradiction, it is often said that the last must prevail [8]. But
this should be accepted only in the last resort. “It is not doubt true that if two sections of an Act of
Parliament are in truth irreconcilable, then prima facie the latter will be preferred. But these are the
arguments of the last resort. The first duty of the court must be, if the result is fairly possible, to give
effect to the whole expression of the parliamentary intention”[9].
8. Generalia Specialibus non derogant- “Generalia specialibus non derogant” literally means “the
general does not detract from the specific”.

Where there are general words in a later Act capable of reasonable and sensible application without
extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier
and special legislation indirectly repealed, altered, or derogated from merely by force of such general
words, without any indication of a particular intention to do so[10].

If a special provision is made on a certain matter, that matter is excluded from the general provision.
Apart from resolving conflict between two provisions in the Act, the principle can also be used for
resolving a conflict between a provision in the Act and a rule made under the Act[11].

9. General Clauses Act, 1897- The General Clauses Act, 1897, is a consolidating and amending
act. The purpose of the act is to avoid superfluity and a repetition of language; and to place in a
single Act, provisions as regards definitions of words and legal principles of interpretation which
would otherwise have to be incorporated in many different Acts and Regulations. The definition and
the rules of interpretation contained in the General Clauses Act have to be read in every Statute
governed by it, provided the statute does not contain anything repugnant to them in the subject or
context or does not exhibit a different intention[12]. The Act is also applicable for interpretation of
the Constitution[13].
nterpretative Process

Hans-Georg Gadamer- Hermeneutics could be defined as a constructive process of Interpretation.


This Constructive Process comprises of Theories that are universally accepted in the interpretative
process.

Negative Hermeneutics Process- It starts from the assumption that very notion of Universal Valid
Interpretation is not tenable.

Gadamer’s Approach- He said that Statutory Interpretation involves creative policy making by
judges and the courts figure out the answers that were put in the statute by the enacting legislature.

"We are a product of our history. We can never know historical work as it originally appeared to its
contemporaries. It is not possible to ascertain the intention of the author or the original context of
production of that historical work. These works pass through endless stages of changing
interpretations, which gets richer and more complex as the time passes."

Gadamer claims that it is not really we who address the texts of tradition, but the traditional texts that
address us. Our conceptions, prejudices, cultural horizon etc. are brought into the open in the
encounter with the past.
The authority of a text is recognized by engaging with it in textual interpretation and explication,
thereby entering into a dialogical relationship with the past. This movement of understanding has
been termed by Gadamer as the “fusion of horizons”. While interpreting, at first, the text appears
alien, however with time we gain a better and more profound understanding not only of text but also
of ourselves.

But, in order to obtain fusion of horizons, one must engage with the text in a productive manner.
There is no short cut trick for this. It is more like a tacit capacity, which we acquire by following
the example of others. The knowledge at stake can only be exhibited in the form of path-breaking
judgments and interpretations.

However, the interpreter can never completely recreate or understand the text’s horizon.
Interpreter’s goal is to find a common ground and such common ground is possible because the
‘temporal gulf’ is filled with traditions and experiences that inform the current horizon and link it with
the previous one.

Gadamer further believed that “time is no longer primarily a gulf to be bridged, because it separates,
but it is actually the supportive ground of process in which the present is rooted. Hence temporal
distance is not something that must be overcome. It is not a yawning abyss, but is filled with the
continuity of custom and tradition, in the light of which all that is handed down presents itself to us”.

He also said that the one would not understand a legal text in abstract without application of the text
to a specific problem. Finding the meaning of any provision in a Statute is not a mechanical
operation. It often involves interpreter’s choice among several competing answers. Therefore,
this creative supplementing of interpreting the law is a task that is reserved for the judges.

Pragmatic Hermeneutics- This is also a type of constructive interpretation. It is mostly prevalent in


the American School of Jurisprudence. William James and Charles Pierce are considered to be its
pioneers.

This branch of hermeneutics holds that Legal Interpretation is interpretive and revealing in character
and it is different from other types of interpretation such as:

1. Scientific Interpretation- This is generally done by the scientists to give meaning to the
phenomenon they observe.

2. Conversational Interpretation- It is a process by which the readers and the listeners understand
their communicative utterances and a standard view of this kind of interpretation holds that the
listener or the reader understands by duplicating or substituting themselves with the propositional
attitude of the author. This method is commonly used in literature.
Ronald Dworkin- Dworkin also followed the line of Gadamer in Interpretative Process.

Pragmatic Hermeneutics and Dworkin

Dworkin said that the most important aspect of legal interpretation is creative or constructive
interpretation. This form of legal interpretation has 2 characters:

1. Legal Practice
2. Legal Concepts

The need for creative interpretation arises when the community develops a complex interpretative
attitude towards the rules and the interpretation is called for when a text or a practice is regarded as
authoritative. The legal practice with regard to a statute in a legal system is interpretative
precisely because it grants authority to the past political decisions that are represented by the
statute.

Dworkin did not agree with many jurists. According to a lot of jurists, jurisprudence is not
interpretative because there is no point in making the practices adopted by the judges authoritative
for legal theories. However, Dworkin said that the general theories propounded by a legal
philosopher involves a constructive interpretation because the philosopher tries to show the legal
practice as a whole in its best light to achieve equilibrium between the legal practice and the
justification of that practice. Hence, according to Dworkin, no firm line divides Jurisprudence
from adjudication or any other aspect of interpretation such as Legal Practice.

Thus, we see that there are three kinds of interpretations liable for the Interpretative Process.

1. The text that judges and others within a particular legal culture are obligated to interpret
and obey.

2. The text created by judges within some particular legal culture which consists of judicial
practices in construing statutes and constitutions.

3. The work of prior legal theories, some of whom seek to describe the judge’s jurisprudence
within some particular legal system and others who seek to do non-culture specific or
general jurisprudence.

Neo-Pragmatism- This version of Pragmatism was developed by Richard Rorty. It was


subsequently carried forward by Stanley Fish.

Previously, Pragmatic Hermeneutics believed in the dualism of ‘mind and matter’ and ‘soul and
body’. But, this dualism has slowly vanished. Now, it is based more on interpreting in a practical
manner. For a pragmatist, interpretation derives meaning not from the antecedents and perception
but from the consequences of action.

While developing neo-pragmatism, Stanley Fish gave a new formula for interpretation. He said
that “Action is guided by the tacit knowledge and not by application of general rules,
principles or theories”. Thus, metaphysical theories are not essential for activities like judging. A
judge is not a theorist of any kind while he is deciding a case.

It is in this context that Fish advanced his theory of “Interpretative Community”. Fish believed that
any written word derives its meaning from the society in which it is used. A Statute comes into
operation in a society once it has been enacted by the legislature. Within this society, a community
emerges that is so closely associated with the working of the said statute that it actually imparts
meaning to the provisions of that Statute. Stanley Fish believed that this meaning should be the
governing factor in interpretation of the said Statute by the courts. In Stanley Fish’s theory, the
Community that gives the ‘controlling meaning’ to the Statute is called as the Interpretative
Community.

However, critics of this theory say that if there is more than one Interpretative Community at same
point of time, then it would lead to a lot of confusion in the mind of the judges as to the interpretation
of said Statute.
Ratio Decidendi

The literal meaning of ‘ratio decidendi’ is “the reason for deciding”. Black’s Law Dictionary has
provided many definitions of this term. Let us discuss some of them.

1. The principle or rule of law on which a court’s decision is founded.

2. The rule of law on which a later court thinks that a previous court founded its decision.

3. It is a general rule without which a case must have been decided otherwise.

4. “The phrase ‘’the ratio decidendi of a case’ is slightly ambiguous. It may mean either (1) the rule
that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that
a later concedes him to have had the power to lay down”[1].

5. “There are two steps involved in the ascertainment of ratio decidendi. First, it is necessary to
determine the facts of the case as seen by the judge; secondly, it is necessary to discover which of
those facts were treated as material by the judge”[2].

Goodhart’s View on ratio decidendi


However, Goodhart did not accept the classical definitions mentioned above. His criticisms were:

a. That every case must contain an ascertainable principle of law, even though there may be no
opinion delivered by the judge.
b. That the statement of law may be too wide or too narrow.

While defending his definition, he said that “the whole point of my article was based on the
proposition that every case must contain a binding principle, but that this binding principle is not
necessarily to be found in the statement of the law made by the judge”.

He also said that “the judges must interpret statutes, but it would be misleading to say that they are
therefore constructing them[3]”.

He even said to the extent that “the phrase ‘ratio decidendi’ is misleading because the reason
which the judge gives for his decision is not binding and may not correctly represent the principle”.

He suggested that the ‘principle of the case’ could be found by determining

(a) The facts treated by the judge as material, and


(b) His decision as based on them.

The judge, therefore, reaches a conclusion upon the facts as he sees them. It is on these facts
that he bases his judgment, and not on any others. It follows that our task in analysing a case is not
to state the facts and the conclusion, but to state the material facts as seen by the judge and his
conclusion based on them. It is by his choice of the material facts that the judge creates
law[4].

Thus, Goodhart placed all the emphasis on the material facts as seen by the judge, and not on
the material facts as seen by anyone else.

Current Trends in the English Legal System


Most of contemporary English authors are of the view that it is not the decision that binds (or is
overruled); it is the rule of law contained within the decision. This element of the decision is termed
as the ratio decidendi, and not every statement of law made by a judge in the case forms part of this
ratio[5].

Every decision contains the following basic ingredients:


1. Findings or material facts, both direct and inferential;
2. Statements of the Principles of law applicable to the legal problems disclosed by the facts; and
3. A judgment (or judgments) based on the combined effect of 1 and 2.

Please note that an inferential finding of fact is the inference that the judge draws from the direct
or perceptible facts. For example, negligence may be inferred from the direct facts of the speed of a
vehicle, the length of skid marks, and the state of the road. Negligence is thus as inferential finding
of fact.

For the purposes of the parties, point number 3 is the material element in the decision, for it is what
ultimately determines their rights and liabilities in relation to the subject matter of the case. However,
for the purpose of the doctrine of precedent, point number 2 is the vital element in the decision, and
it is this that is termed the ratio decidendi. Thus the ratio decidendi may be defined as the statement
of law applied to the legal problems raised by the facts, upon which the decision is based[6].

Not every statement of law in a judgment is binding; only those statement that based upon the facts
and upon which the decision is based are binding. Any other statement of law is superfluous and is
described as obiter dictum (it means ‘by the way’). It should not, however be concluded from this
that obiter dicta are of little or no weight or importance.

Obiter Dicta

There are two types of obiter dicta.

1. A statement of law is regarded as obiter if it is based upon facts that either were not found to be
material or were not found to exist at all.
2. Even where a statement of law is based on the facts as found, it will be regarded as obiter if it
does not form the basis of the decision. A statement of law made in support of a dissenting judgment
is an obvious example.

Although obiter dicta lack binding authority, they may nevertheless have a strong persuasive
influence[7].
Important Supreme Court Cases

1. Krishena Kumar & another v. Union of India & Others[1] - The ratio decidendihas to be
ascertained by an analysis of the facts of the case and the process of reasoning involving the major
premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise
consisting of the material facts of the case under immediate consideration. If it is not clear, it is not
the duty of the court to spell it out with difficulty in order to be bound by it.
Therefore, we find that it is the ratio decidendi which is a binding precedent. The other material part
of a judgment is the Obiter Dictum. However, in the present article we are not concerned with it.

2. State of Orissa v. Sudhanshu Shekhar Mishra[2] - A decision is only an authority for what it
actually decides. What is of the essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations made in it.

3. Dalveer Singh v. State of Punjab[3] - Even where the direct facts of an earlier case appear to
be identical to those of the case before the Court, the Judge is not bound to draw the same
inference as drawn in the earlier case.

4. Fazlunbi v. K. Khader Vali & Another[4] - Precedents of the Supreme Court are not to be left
on the shelves. Neither could they be brushed aside saying that precedents is an authority only “on
its actual facts”. Such devices are not permissible for the High Court when decisions of the
Supreme Court are cited before them not merely because of the jurisprudence of precedents, but
because of the imperatives of Article 141.
5. A.R. Antulay v. R.S. Nayak & Another[5] - Per incuriam are those decisions given in ignorance
or forgetfulness of some inconsistent statutory provision or some authority binding on the Court
concerned so that in such cases some part of the decision or some step in the reasoning on which it
is based is found, on that account to be demonstrably wrong. If a decision is given per incuriam, the
Court can ignore it.

6. Arnit Das v. State of Bihar[6] - A decision not expressed, not accompanied by reasons and not
proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have
a binding effect as is contemplated by Article 141. That which has escaped in the judgment is
not ratio decidendi in the technical sense when a particular point of law was not consciously
determined (this is the rule of sub-silentio).
In the present article, we will discuss the three famous tests used by the courts to ascertain ratio
decidendi.

1. Wambaugh’ Test
2. Halsbury’s Test
3. Goodhart’s Test

Wambaugh’s Test

The Inversion Test propounded by Wambaugh is based on the assumption that the ratio
decidendi is a general rule without which a case must have been decided otherwise. Inversion Test
is in form of a dialogue between him and his student. He gave following instructions for this[1]:

1. Frame carefully the supposed proposition of law.


2. Insert in the proposition a word reversing its meaning.

3. Inquire whether, if the court had conceived this new proposition to be good and had had it in mind,
the decision could have been the same.

4. If the answer is affirmative, then, however excellent the Original Proposition may be, the case is
not a precedent for that proposition.

5. But if the answer be negative, the case is a precedent for the Original Proposition and possibly for
other propositions also.

Thus, when a case turns only on one point the proposition or doctrine of the case, the reason for the
decision, the ratio decidendi, must be a general rule without which the case must have been decided
otherwise[2]. A proposition of law which is not ratio decidendi under the above test must, according
to Wambaugh, constitute a mere dictum.

However, Rupert Cross criticized the Inversion Test on the ground that "the exhortation to frame
carefully the supposed proposition of law and the restriction of the test to cases turning on only one
point rob it of most of its value as a means of determining what was the ratio decidendi of a case,
although it has its uses as a means of ascertaining what was not ratio".

Thus, the merit of Wambaugh’s test is that it provides what may be an infallible means of
ascertaining what is not ratio decidendi. It accords with the generally accepted view that a ruling can
only be treated as ratio if it supports the ultimate order of the court[3].

Halsbury’s Test

The concept of precedent has attained important role in administration of justice in the modern
times. The case before the Court should be decided in accordance with law and the doctrines. The
mind of the Court should be clearly reflecting on the material in issue with regard to the facts of the
case. The reason and spirit of case make law and not the letter of a particular precedent[4].

Lord Halsbury explained the word “ratio decidendi” as “it may be laid down as a general rule that that
part alone of a decision by a Court of Law is binding upon Courts of coordinate jurisdiction and
inferior Courts which consists of the enunciation of the reason or principle upon which the question
before the Court has really been determined. This underlying principle which forms the only
authoritative element of a precedent is often termed the ratio decidendi”.

In the famous case of Quinn v. Leathem[5], Lord Halsbury said that:


“Now, before discussing the case of Allen v. Flood[6] and what was decided therein, there are two
observations of a general character which I wish to make, and one is to repeat what I have very
often said before, that every judgment must be read as applicable to the particular facts proved, or
assumed to be proved, since the generality of the expressions which may be found there are not
intended to be expositions of the whole law, but governed and qualified by the particular facts of the
case in which such expressions are to be found. The other is that a case is only an authority for what
it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code,
whereas every lawyer must acknowledge that the law is not always logical at all.”

Thus, according to Lord Halsbury, it is by the choice of material facts that the Court create law.

Goodhart’s Test

In 1929, Goodhart had argued that the ratio of a case must be found in the reasons for the decision
and that there is no necessary connection between the ratio and the reasons. He laid down following
guidelines for discovering the ratio decidendi of a case[7]:

1. Ratio decidendi must not be sought in the reasons on which the judge has based his decision.

2. The reasons given by the judge in his opinion are of peculiar importance, for they may furnish us
with a guide for determining which facts he considered material and which immaterial.

3. A decision for which no reasons are given does not necessarily lack a ratio; furthermore, the
reasons offered by a court in reaching a decision might be considered inadequate or incorrect, yet
the court’s ruling might be endorsed in later cases – a ‘bad reason may often make good law’.

4. Thus, ratio decidendi is whatever facts the judge has determined to be the material facts of the
case, plus the judge’s decision as based on those facts. It is by his choice of the material facts that
the judge creates law.

If we accept Goodhart’s conception of ratio decidendi, we could explain why hypothetical instances
are unlikely to be accorded the same weight as judicial precedents as hypothetical instances are by
definition obiter dicta[8]. Also, this conception of ratio decidendi links the doctrine of precedent with
the principle that like cases be treated alike. Any court which considers itself bound by precedent
would come to the same conclusion as was reached in a prior case unless there is in the case some
further fact which it is prepared to treat as material, or unless fact considered material in the previous
case is absent[9].
egal Rights and Duties
Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of decisions
of suitably authoritative bodies within them[1].

According to positivists, legal rights are essentially those interests which have been legally
recognized and protected. John Austin made a distinction between legal rights and other types of
rights such as Natural rights or Moral rights. By legal rights, he meant rights which are creatures
of law, strictly or simply so called. He said that other kind of rights are not armed with legal
sanction and cannot be enforced judicially.

On the other hand, Salmond said that a legal right is an interest recognized and protected by rule of
law and violation of such an interest would be a legal wrong. Salmond further said that:

1. A legal duty is an act that obliges to do something and act, the opposite of which would be a legal
wrong.
2. Whenever law ascribes duty to a person, a corresponding right also exists with the person on
whom the duty is imposed.

3. There are two kinds of duties: Moral Duty and Legal Duty.

4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every right or duty
involves a bond of legal obligation by which two or more persons are bound together. Thus, there
can be no duty unless there is someone to whom it is due; there can be no right unless is someone
from whom it is claimed; and there can be no wrong unless there is someone who is wronged, that is
to say, someone whose right has been violated.

This is also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds
one person to another[2].

On the other hand, Austin said that Duties can be of two types:

a. Relative Duty – There is a corresponding right existing in such duties.


b. Absolute Duty – There is no corresponding right existing.

Austin conceives this distinction to be the essence of a right that it should be vested in some
determinate person and be enforceable by some form of legal process instituted by him. Austin thus
starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like the
society or the people. The second assumption with which Austin starts is that sovereign creates
rights and can impose or change these rights at its will. Consequently, the sovereign cannot be the
holder of such rights.
According to Salmond, there are five important characteristics of a Legal Right[3]:

1. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the
person entitled, or the person of inherence.

2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as the
person bound, or as the subject of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour of the person entitled. This may be
termed the content of the right.

4. The act or omission relates to something (in the widest sense of that word), which may be termed
the object or subject matter of the right.

5. Every legal right has a title, that is to say, certain facts or events by reason of which the right has
become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that legal rights
are legal concepts and these legal concepts have their correlatives which may not necessarily be a
duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal rights are
essentially interests recognized and administered by law and belong to the ‘science of law’ instead
of ‘law’. He proposed that such Rights are conceptions by which interests are given form in order to
secure a legal order.

Hohfeld’s System of Fundamental Legal Concepts or Jural Relations

1 2 3 4
Right Privilege Power Immunity
Jural
Opposites – – – –
No Right Duty Disability Liability
Jural Right Privilege Power Immunity
Correlatives – – – –
Duty No Right Liability Disability
Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in another
and liability is the presence of power in another.

Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in oneself
and disability is the absence of power in oneself.

Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right or
claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other person to
change his legal position.

c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the person’s
legal position.

Salmond on Rights and Duties


Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect duty is
one which is not merely recognized by law but also enforced by law. In a fully developed legal
system, there are rights and duties which though recognized by law are not perfect in nature. The
rights and duties are important but no action is taken for enforcing these rights and duties. The rights
form a good ground for defence but duties do not form a good ground for action. However, in some
cases, an imperfect right is sufficient to enforce equity.

Salmond gave following classifications of rights.

1. Positive and Negative Rights


2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights

Salmond’s Classification of Positive and Negative Rights

Positive Rights Negative Rights


1 A positive right corresponds to a Negative rights have negative duties
corresponding duty and entitles its corresponding to them and enjoyment is
owners to have something done for him complete unless interference takes
without the performance of which his place. Therefore, majority of negative
enjoyment of the right is imperfect. rights are against the entire world.
2 In the case of positive rights, the person Whereas, in case of negative rights,
subject to the duty is bound to do others are restrained to do something.
something.
3 The satisfaction of a positive right Whereas in case of a negative right, the
results in the betterment of the position
position of the owner is maintained as it
of the owner. is.
4 In case of positive rights, the relation
Whereas in case of negative rights, the
between subject and object is mediate relation is immediate, there is no
and object is attained with the help of
necessity of outside help. All that is
others. required is that others should refrain
from interfering case of negative rights.
5 In case of positive rights, a duty is In case of negative rights, the duty is
imposed on one or few individuals. imposed on a large number of persons.

Salmond’s Classification of Real and Personal Rights

Real Rights Personal Rights


1 A real right corresponds to a duty A personal right corresponds to a duty
imposed upon persons in general. imposed upon determinate individuals.
2 A real right is available against the A personal right is available only against a
whole world. particular person.
3 All real rights are negative rights. Most personal rights are positive rights
Therefore, a real right is nothing more although in a few exceptional cases they
than a right to be left alone by others. It are negative.
is merely a right to their passive non-
interference.
In real right, the relation is to a thing. In personal right, it is the relation to other
Real rights are derived from some persons who owe the duties which is
special relation to the object. important. Personal rights are derived from
special relation to the individual or
individuals under the duty.
4 Real rights are right in rem. Personal rights are right in personam.

Salmond’s Classification of Right in rem and Right in personam

Right in rem Right in personam


1 It is derived from the Roman term ‘actio It is derived from the Roman term ‘action
in rem’. An action in rem was an action in personam’. An action in
for the recovery of dominium. personam was one for the enforcement
of obligato i.e. obligation.
2 The right protected by an action in A right protected by action in
rem came to be called jus in rem. personam came to be called as jus in
personam.
3 Jus in rem means a right against or in Jus in personam means a right against
respect of a thing. or in respect of a person.
4 A right in rem is available against the A right in personam is available against
whole world. a particular individual only.

Salmond’s Classification of Proprietary and Personal Rights

Proprietary Rights Personal Rights


1 Proprietary rights means a person’s right Personal rights are rights arising out of
in relation to his own property. any contractual obligation or rights that
Proprietary rights have some economic relate to status.
or monetary value.
2 Proprietary rights are valuable. Personal rights are not valuable.
3 Proprietary rights are not residual in Personal rights are the residuary rights
character. which remain after proprietary rights
have been subtracted.
4 Proprietary rights are transferable. Personal rights are not transferable.
5 Proprietary rights are the elements of Personal rights are merely elements of
wealth for man. his well-being.
6 Proprietary rights possess not merely Personal rights possess merely judicial
judicial but also economic importance. importance.

Salmond’s Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights


A right is inheritable if it survives the owner. A right is uninheritable if it dies with the
owner.

Ownership
Salmond on Ownership

Ownership denotes the relationship between a person and an object forming the subject-matter of
his ownership. It consists in a complex of rights, all of which are rights in rem, being good against the
entire world and not merely against specific persons[4].

Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to
decide how it shall be used and the right of income from it. However, Right to possess is not a
right strictu sensu because such rights are in fact liberties as the owner has no duty towards others
and he can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.

3. The owner has the right to consume, destroy or alienate the things. The right to consume and
destroy are again straight forward liberties. The right to alienate i.e. the right to transfer the existing
rights involves the existence of power.
4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has
a residuary character. Salmond contrasted the rights of the owner with the lesser rights of the
possessor and encumbrancer by stating that “the owner's rights are indeterminate and residuary in a
way in which these other rights are not”.

Austin’s Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner: ‘the right to
use or deal with some given subject, in a manner, or to an extent, which, though is not
unlimited, is indefinite’.

Now in this description it is necessarily implied, that the law will protect or relieve the owner against
every disturbance of his right on the part of any other person. Changing the expression, all other
persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of
the right.

Austin further said that “Ownership or Property, is, therefore, a species of Jus in rem. For
ownership is a right residing in a person, over or to a person or thing, and availing against
other persons universally or generally. It is a right implying and exclusively resting upon
obligations which are at once universal and negative”.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion that a person
is owner of a thing when his interest will outlast the interests of other persons in the same
thing. This is substantially the conclusion reached by many modern writers, who have variously
described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring interest’.

According to Dias, an owner may be divested of his claims, etc., to such an extent that he may be
left with no immediate practical benefit. He remains owner nonetheless. This is because his
interest in the thing, which is ownership, will outlast that of other persons, or if he is not presently
exercising any of his claims, etc., these will revive as soon as those vested in other persons have
come to an end.

In the case of land and chattels, if the owner is not in possession, ownership amounts to a better
right to obtain the possession than that of the defendant. It is 'better' in that it lasts longer. It is
apparent that the above view of Dias substantially agrees with that of Salmond. According to Dias it
is the outlasting interest and according to Salmond, ownership has the characteristic of being
indeterminate in duration and residuary in nature[5].
Types of Ownership
Corporeal Ownership Incorporeal Ownership
1. Corporeal Ownership signifies ownership 1. Incorporeal Ownership is a right or an
in a physical object. interest.
2. Corporeal things are things which can be 2. Incorporeal things cannot be perceived
perceived by senses. by senses and are in tangible.
Sole Ownership Co-Ownership
When an individual owns, it is sole When there is more than one person who
ownership owns the property
Trust Ownership Beneficial Ownership
1. There is no co-ownership. 1. There can be co-ownership.
2. The person on whom the responsibility 2. The person for whom the trust is created
lies for the benefit of the others is called the is called the Beneficiary.
Trustee.
3. The trustee has no right to the beneficial 3. The Beneficiary has the full rights to
enjoyment of the property. enjoy the property.
4. Ownership is limited. A trustee is merely 4. Ownership is complete.
an agent upon whom the law has conferred
the duty of administration of property.
5. Trusteeship may change hands. 5. Beneficial Owners remain the same.
Legal Ownership Equitable Ownership
Legal ownership is that ownership which Equitable ownership comes from equity
has its basis in common law. divergence of common law. Thus,
distinction between legal and equitable
ownership is very thin.
Vested Ownership Contingent Ownership
1. Ownership is vested when the title is 1. Ownership is contingent when it is
perfect. capable of being perfect after fulfilment of
certain condition.
2. Vested ownership is absolute. 2. Contingent ownership becomes vested
when the conditions are fulfilled.
Absolute Ownership Limited Ownership
Ownership is absolute when possession, Limited Ownership is subjected to the
enjoyment, disposal are complete and limitations of use, disposal or duration.
vested without restrictions save as
restriction imposed by law.

Possession
Salmond on Possession

Salmond said that in the whole of legal theory there is no conception more difficult than that of
possession. The legal consequences which flow from the acquisition and loss of possession are
many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is
presumed to be the owner of it, and may put all other claimants to proof of their title. The transfer of
possession is one of the chief methods of transferring ownership.

Salmond also said that possession is of such efficacy that a possessor may in many cases confer a
good title on another, even though he has none himself.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as possession
all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the
contrary.

2. Possession may exist in fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognized as such by the law, and he is then said to have
detention or custody rather than possession.

3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does not
possess. The possession thus fictitiously attributed to him is termed constructive.

In Roman law, possession in fact is called possessio naturalis, and possession in law as possessio
civilis.

Corporeal and Incorporeal Possession

Corporeal Possession is the possession of a material object and Incorporeal Possession is the
possession of anything other than a material object.

Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is


distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the
ownership of a right.

Salmond further said that “corporeal possession is clearly some form of continuing relation between
a person and a material object. It is equally clear that it is a relation of fact and not one of right”.

What, then, is the exact nature of that continuing de facto relation between a person and a thing,
which is known as possession?

According to Salmond, the possession of a material object is the continuing exercise of a claim to
the exclusive use of it.
It involves two distinct elements, one of which is mental or subjective, the other physical or objective.

The mental element comprises of the intention of the possessor with respect to the thing possessed,
while the physical element comprises of the external facts in which this intention has realised,
embodied, or fulfilled itself.

The Romans called the mental element as animus and the subject element as corpus. The mental or
subjective element is also called as animus possidendi, animus sibi habendi, or animus domini.

The Animus Possidendi - The intent necessary to constitute possession is the intent to appropriate
to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object.
Salmond made following observations in this regard.

1. It is not necessarily a claim of right.


2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not necessarily
involve any continuous or present knowledge of the particular thing possessed or of the possessor’s
relation to it.

The Corpus Possessionis – The claim of the possessor must be effectively realized in the facts;
that is to say, it must be actually and continuously exercised. The corpus possessionis consists in
nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing
oneself at will. Actual use of it is not essential.

Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that which is
acquired or retained directly or personally may be distinguished as immediate or direct.

There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his own.

2. The direct possession is in one who holds both on the actual possessor’s account and on his own,
but who recognizes the actual possessor’s superior right to obtain from him the direct possession
whenever he choose to demand it.
3. The immediate possession is in a person who claims it for himself until some time has elapsed or
some condition has been fulfilled, but who acknowledges the title of another for whom he holds the
thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end.

Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exist in respect of the same thing as already explained
above.
2. Two or more persons may possess the same thing in common, just as they may own it in
common. This also called as compossessio.

3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object, just as
corporeal and incorporeal ownership may.

Incorporeal Possession

In Incorporeal Possession as well, the same two elements required, namely the animus and
the corpus. In the case of incorporeal things, continuing non-use is inconsistent with possession,
though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal possession is
distinguished from it as the possession of a thing. The distinction between corporeal and incorporeal
possession is clearly analogous to that between corporeal and incorporeal ownership.

Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like
incorporeal ownership, is that of a right. In essence, therefore, the two forms of possession are
identical, just as the two forms of ownership are.

Hence, Possession in its full compass and generic application means the continuing exercise of any
claim or right.

Paton on Possession

Paton said that even though Possession is a concept of law still it lacks a uniform approach by the
jurists. Some jurists make a distinction between legal and lawful possession. Possession of a thief is
legal, but not lawful. In some cases, where possession in the popular sense is meant, it is easy to
use some such term as physical control. Possession is also regarded as prima facie evidence of
Ownership.
According to Paton, for English law there is no need to talk of mediate and immediate possession.
The Bailee and the tenant clearly have full possession: Salmond's analysis may he necessary for
some other systems of law, but it is not needed in English law.

Oliver Wendell Holmes and Von Savigny on Possesion

Savigny with other German thinkers (including Kant and Hegel) argued that possession, in the
eyes of the law, requires that the person claiming possession intend to hold the property in
question as an owner rather than recognize the superior title of another person, so that in
providing possessory remedies to lessees, Bailees, and others who lack such
intentions, modem law sacrifices principle to convenience.

To this Holmes responded that he “cannot see what is left of a principle which avows itself
inconsistent with convenience and the actual course of legislation. The first call of a theory of law is
that it should fit the facts. It must explain the observed course of legislation. And as it is pretty certain
that men will make laws which seem to them convenient without troubling themselves very much
what principles are encountered by their legislation, a principle which defies convenience is likely to
wait some time before it finds itself permanently realized[6].”

Holmes also criticised Savigny and other German theorists by saying that “they have known no other
system than the Roman”. In his works, Holmes proved that the Anglo-American Law of Possession
derived not from Roman law, but rather from pre-Roman German law.

One of Holmes's criticisms of the German theorists, signally including Savigny, is that they "have
known no other system than the Roman, ' .6 and he sets out to prove that the Anglo-American law of
possession derives not from Roman law, but rather from pre- Roman German law.
uristic Personality or Corporate Personality

Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical theorists
of 19th century postulated the concept of will as an essential requirement for exercising legal right.
They also believed that personality is the subjective possibility of a rightful will.

Legal personality is an artificial creation of law. Entities recognized by law are capable of being
parties to a legal relationship. A natural person is a human being whereas legal persons are
artificial persons, such as a corporation, created by law and given certain legal rights and
duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is
treated more or less as a human being[1]. All legal persons can sue or be sued.

Theories of Juristic Personality


1. Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone,
and Holland etc. According to this theory, the personality of a corporation is different from that of its
members. Savigny regarded corporation as an exclusive creation of law having no existence apart
from its individual members who form the corporate group and whose acts are attributed to the
corporate entity. As a result of this, any change in the membership does not affect the existence of
the corporation.

It is essential to recognize clearly the element of legal fiction involved in this process. A company is
in law something different from its shareholders or members[2]. The property of the company is not
in law the property of the shareholders. The company may become insolvent, while its members
remain rich[3].

Gray supported this theory by saying that it is only human beings that are capable of thinking,
therefore it is by way of fiction that we attribute ‘will’ to non-human beings through human beings
who are capable of thinking and assign them legal personality.

Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes
easier to disregard juristic personality where it is desirable.

2. Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes
that corporation as a legal person has great importance because it is recognized by the State or the
law. According to this theory, a juristic person is merely a concession or creation of the state.

Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert
that the corporation within the state have no legal personality except as is conceded by the State.
Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to support this
theory.

Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a
corporation is merely a name and a thing of the intellect, the concession theory is indifferent to
the question of the reality of a corporation in as much as it focuses only on the source (State) from
which the legal power of the corporation is derived.

3. Group Personality Theory or Realist Sociological Theory – This theory was propounded by
Johannes Althusius and carried forward by Otto Van Gierke. This group of theorists believed that
every collective group has a real mind, a real will and a real power of action. A corporation therefore,
has a real existence, irrespective of the fact whether it is recognized by the State or not.

Gierke believed that the existence of a corporation is real and not based on any fiction. It is a
psychological reality and not a physical reality. He further said that law has no power to create an
entity but merely has the right to recognize or not to recognize an entity.
A corporation from the realist perspective is a social organism while a human is regarded as a
physical organism. This theory was favoured more by the sociologists rather than by the lawyers.
While discussing the realism of the corporate personality, most of the realist jurists claimed that the
fiction theory failed to identify the relationship of law with the society in general. The main defect of
the fiction theory according to the realist jurists was the ignorance of sociological facts that
evolved around the law making process.

Horace Gray, however, denied the existence of collective will. He called it a figment. He said that to
get rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out
one fiction by another.

4. The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter
von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential
and is merely an economic device by which we can simplify the task of coordinating legal relations.
Hence, when necessary, it is emphasized that the law should look behind the entity to discover the
real state of affairs. This is also similar to the concept of lifting of the corporate veil.

This group believed that the juristic personality is only a symbol to facilitate the working of the
corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a
bracket is put around them to indicate that they are to be treated as one single unit when they form
themselves into a corporation.

5. Purpose Theory or the theory of Zweck Vermogen - The advocates of this theory are Ernst
Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It
declared that only human beings can be a person and have rights. This theory also said that a
juristic person is no person at all but merely a “subjectless” property destined for a particular
purpose. There is ownership but no owner. Thus a juristic person is not constructed round a group of
persons but based on an object and purpose.

The assumption that only living persons can be the subject-matter of rights and duties would have
deprived imposition of rights and duties on corporations which are non-living entities. It therefore,
became necessary to attribute ‘personality’ to corporations for the purpose of being capable of
having rights and duties.

6. Hohfeld’s Theory- He said that juristic persons are creations of arbitrary rules of procedure.
According to him, human beings alone are capable of having rights and duties and any group to
which the law ascribes juristic personality is merely a procedure for working out the legal rights and
jural relations and making them as human beings.
7. Kelsen’s Theory of Legal Personality – He said that there is no difference between legal
personality of a company and that of an individual. Personality in the legal sense is only a technical
personification of a complex of norms and assigning complexes of rights and duties.

American Realist School of Jurisprudence-


American Realism is not a school of jurisprudence but it is pedagogy of thought. They are
concerned with the study of law as it works and functions which means investigating the social
factors that makes a law on the hand and the social results on the other. The emphasize more
upon what the courts may do rather than abstract logical deductions from general rules and on
the inarticulate ideological premises underlying a legal system.
John Chipman Gray- 1839-1915- The real relationship of jurisprudence to law depends not
upon what law is treated but how law is created. Gray stresses the fact that the statutes together
with precedents, equity and custom are sources of law but the law itself is what the persons
acting as judicial organs of the state laid down as rules of conduct. To determine, rights and
duties, the judges settle what fact exists and also lay down rules according to which they deduce
legal consequences from facts. Gray emphasizes the role which judges play in laying down the
law because it is the judge who while interpreting the statute, custom or equity create law rather
than discovering the law. The law as expressed in statutes or customs gets meaning or precision
only after the judge expresses his opinion. The judge depend on the sources of the law such as
statute, judicial precedent, opinion of experts, customs and public policies and principles of
morality, the law becomes concrete and positive only in the pronouncements of the court. Judge
made law is the final and authoritative form of law. He suggests that the judicial pronouncements
of law are the true subject matter of jurisprudence for evaluations. Gray’s contribution lies in the
fact that judicial decisions often have been responsible for giving not only content but direction
to political, social and economic thought.
The contribution of Gray in formulating the principle that the judges or the courts have the first
and the final say as to what the law is and obviously the role of jurisprudence is to understand
and evaluate the law made by judges is the realist approach to understanding law and legal
institutions.
Justice Oliver Wendell Holmes- American Realist Movement- Scope of Jurisprudence has an
enhanced effect on American Realist thinking. The concept of law traditionally is a collection of
rules from which deductions can be made. Holmes observed that life of the law has not been
logic, it has been experience. The law embodies the story of a nation’s development through
many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of
mathematics. Law must be strictly distinguished from morals.
Holmes definition of law and the scope of jurisprudence led to future developments in
constructing American Realism which focused attention on empirical factors underlying legal
system.
Jerome Frank- 1889-1957- Law and Modern Mind-
Rule Sceptics believe that the lawyer should be able to predict to his clients, the decisions in
most law suits not yet commenced but legal rules enunciated in court’s opinions sometimes
called paper rules, too often proved unreliable as guides in the prediction of decisions.
The Fact Sceptics also engage in rule scepticism and tear behind the paper rules. The Fact
Sceptics are primarily interested in trial courts, yet they too cannot predict future decisions.
The conventional description how the courts render decision from the application of legal rules
does not describe the picture of judicial law making correctly and fairly, especially when
testimony of witnesses are to be recorded in the trial where the chances making of mistakes on
part of the witnesses as to the correctness of what they saw or heard in their recollection of what
they observe may be at variance with the reality.
Similarly, Trial judges and jurists, also human, may have prejudices of an unconscious unknown
even to themselves for or against some judges, lawyers, witnesses. These prejudices can even be
racial, religious, economic, and political or gender biased. He laid emphasis on understanding the
working of the lower courts as he believed points of law emerge from fact situation of the lowest
situation of the court hierarchy. The textbook approach of law is misleading as the working of
the court system is uncertain and misty.
Instead of taking precedence, emphasis should be there in training in fact-finding, evaluation of
prejudices, psychology of witnesses both for the trial judges and for the prospective jurors to
give effect to the empirical analysis of law and legal institutions.
John Rawls- He was a political scientist and one of the most influential moral philosophers. He
gave theory of Justice and said that political thought is distinct from natural law. This society is
self-sufficient association of persons who in their relations to one another recognize rules of
condition as biding and act in accordance. They specify co-ordination designed to advance good
of those who are taking part in it.
The society is witnessing a conflict of interest both in terms of sharing of benefits as well as
making a better life. A set principle is required in determining the limits of individual advantages
and social arrangement for proper division of heirs. It is called as “Social Justice”. It provides a
way of assigning rights and duties in basic institution of society. It also defines appropriate
distribution of benefits and burdens of social co-operation.
The main idea is to carry it to higher level of abstraction, the familiar theory of social contract.
These can regulate all agreements and they specify co-operation that can be entered into and
forms of government that can be established. Thus, justice is termed as fairness.
He conceives that basic structure of society distributes primary goods. They are liberty,
opportunity, income and wealth, health and vigor, intelligence and imagination.
Two principles of Justice-
1. Each person is to have equal right to most extensive total system of basic liberties compatible
with a similar system for all.
2. Social and economic inequalities are to be arranged so that both are greatest benefit of the least
advantage consistent with the just saving principle.
3. Attached to offices and persons open to all under fair equality for the protection of liberty itself.
a. Maximization of liberty subsists only to such constraints as are essential for the protection of
liberty itself.
b. Equality for all, both in basic liberties of social life and also in distribution of all other forms of
social good. It is subject only to the exception that the inequalities may be permitted if they
produce greatest possible benefit for those least well-off in given scheme of inequality.
4. Fair equality of opportunity and elimination of all inequalities of opportunities based on birth or
wealth.
Clarence Morris- Laws have to be good to achieve justice. Morris covers all varieties of laws
which govern human conduct.
Law means more than statutes and ordinances. It includes both adjudicated decisions of cases
and social recognition of those legal obligations that exist without governmental promptings.
The conception of justice is inbuilt in law provided law takes into account genuine aspirations of
people.
Doing justice through law means lawmakers serve the public by advancing its genuine
aspirations which are deep seeded, reasonable and non-exploitative. There is need for judicial
and legislative creativity for affecting the public aspirations.
Conformity with Culture-
It is an awareness of lawmaker of his responsibility to the environment where people exist and
live. The lawmaker must keep in mind, the environment within which law has to exist and
develop.
Morris believes law to be justifies morally, socially and technically. He does not assert that just
quality is a necessary condition for continuity of law.
Jerome Hall- There is objective and absolutely valid ethical values. Democracy is a part of
modern natural law because values incorporated in democratic law represents most stable policy
decisions which to be implemented by compulsion
Integrative Jurisprudence- It is a combined jurisprudence of positivists, naturalists and
sociological description and an understanding of value components of legal order.
Law of Action- Hall meant that law as social institution cannot be understood without
understanding day to day practices of judges, administrators and law enforcement officials. Law
is not simply rules, percepts and doctrines but is actual working of them. Therefore, law as action
would necessarily mean moral principles and ideas.
Karl Llewellyn- 1893-1962- he recognized the functional approach to law and delineated certain
positions as common to American Realist. He summarized it.
1. The conception of law is in a constant state of flux.
2. The conception of law is a means to social ends and not an end in itself so that any part needs to
be constantly examined for its purposes and for its effect and to be judged in the light of both and
of their relation to each other.
3. The conception of society is in flux and in flux it is typically faster than the law so that
probability is always given that any portion of law needs re-examination to determine how far it
fits the society it purports to serve.
4. For the purpose of these enquiries, the jurist should look at what courts and officials and citizens
without reference to what they ought to do. There should be a temporarily divorce of is and
ought for the purposes of study.
5. Juristic enquiry must regard with suspicion the assumptions that legal rules as they are formally
enunciated or inscribed in books represent what courts and people are actually doing.
6. Jurist must regard with equal suspicion that rules of law formally enunciated actually do produce
the decisions which purport to be based on them.
7. There must be recognition of the necessity of grouping cases in narrower categories as the
realists tries to indicate explicitly which criterion is being applied in any particular instance.
8. Jurists must insist on evaluation of any part of law in terms of its effects and insistence on the
worthiness of crime to find these effects.
9. Jurist must insist on sustained and programmatic attacks on the problems of law along any of
these lines.
My philosophy of law- He stresses that law is a going and necessary institution in the society.
Law as a going institution must be tested by life and achieve results. The legal phenomenon can
be booked for the purposes of law jobs. He goes on for advocacy, counselling, judging, law
making, mediation, conciliation, organization, policing etc. All these areas need a fresh look.
While commenting on common law traditions list three major characteristics of judicial
precedents as doing law jobs.
The reputations of the opinion writing judge, the principle of broad generalization to bring order
and sense in the precedent, and policy of prospective consequence of the rule under
consideration are considerations which must be taken into account before evaluating a judicial
decision.
The facts of law are facts of life and the precedence of courts whether lower or higher unit not in
the sense what they have decided but what was bothering and helping the court.
Scandinavian Realist School
The approach which they have developed over the centuries is peculiar and has very little
parallel with other countries. The law is Judge made law and little codification happens in these
countries.
Law can be explained only in terms of observable facts and the study of such facts which is the
science of law. Therefore, law is a true science with any other concern with facts and events in
the realm of casualty.
Law is nothing but the very life of mankind in organized groups and the conditions which make
possible peaceful co-existence of mass of individuals and social groups and the co-operation for
the other ends than mere existence and propagation.
Axel Hagerstrom- 1868-1939-He is considered to be the spiritual father of the Scandinavian
Realists. He mastered the Roman Law. He was essentially a jurist of philosophical times. Legal
Science are important tools in reorganization of society in just the same way as natural sciences
depict the natural phenomenon.
The rights, duties, property, will of the state were all word play. Legal Philosophy is a
sociological dispensation based on Historical and Psychological Analysis. The idea of rights and
duties expressed in the imperative form is really about something which the legislator had in
mind too be actualized by means of the law.
The claims and assertions of rights and duties is basically what in fact a person claiming a right
can obtain from the party who is under an obligation through the process of law. Judges while
applying the legal odds, ‘it shall be so’ is nearly a phrase which does not express any kind of idea
but serves as a psychological means of compulsion in a certain case.
It is only from the ideas that logical content can be drawn. On the other hand the ideal content of
law is arrived at for psychological associative reasons.
The legal enactments concerning rights and duties are powers which fall outside the physical
world. Even if, the legislator also understands why rights and duties are certain social state of
affairs which he aims at realizing, yet the idea of rights and duties are supernatural powers and
bonds present and active throughout. The essence of Hagerstorm’s thesis is the extrapolation of
the idea of rights and duties as they are odd propositions but there content is something of
supernatural power with regard to things and persons.
The second aspect of his thesis is that rights and duties have a psychological explanation found
in the feelings of strength and power associated with the conviction of possessing a right.
Therefore, one fights better if one believes that one has right on one’s side.
Karl Olivercrona- 1897- Rules of law are independent imperatives that are propositions in
imperative form but not issuing like commands from particular persons.
Law as fact- Law is a link in the chain of cause and effect. The binding force of law is a reality
merely as an idea in human minds. The content of a rule of law looking at both substantive and
procedural aspects may be defined as an idea of imaginary action by people, for e.g. judges in
imaginary situations. The application of law consists in taking these imaginary actions as models
for actual conduct when the corresponding situations arise in real life.
Rule of Law is not command in the proper sense. Its innermost meaning is to range law among
the facts of actual world and the commands if there are any are natural facts. State as an
organization cannot issue commands as it is the individuals who may issue commands. The rules
of law are independent imperatives as they are propositions which function independently of any
person who commands. Law chiefly consists of rules about force. The rules of civil and criminal
are at one and at the same time, the rules for private citizens as well as the use of force by the
officials.
He asserts that the belief that moral ideas are the primary factors that the law is inspired by them
and justice is represented by rules of law is incorrect as they are not based on facts rather are
superstitions.
Legal Language and Reality- He held that the purpose of all legal enactments, pronouncements,
contracts and other legal acts is to influence man’s behaviour and direct them in certain ways.
The contribution of Olivercrona is multifold.
1. By Stressing that Law as fact is something which has to be observed and the legal conception
such as command-duty, legal rights-duties are fantasies of mind.
2. The Psychological Pressures are the real reason for law.
3. Rules of Law are imperatives distinct from commands.
A.B. Lundstedt- 1882-1995- Legal Thinking Revisited- He contends that natural justice is an
external factor for balancing the interests of the parties based on evaluation. The entire
substratum of legal ideology, the so called material law and its basis, natural justice lacks the
character of reality. Even legal rights, legal obligations, legal relationships and the like lack such
a character. The common sense of justice is far from being able to support the material law, on
the contrary, receives its entire bearing through the maintenance of law i.e. legal machinery
which takes the common sense of justice into its service and directs it in groves and furrows
advantageous to society and its economy and consequently, legal ideology does not and cannot
perceive those realities appertaining to legal machinery but places them right on their head.
Legal conceptions such as wrongfulness, guilt and the like are operative only in the subjective
conscience and could not have objective meaning.
To contend that the defendant has violated a duty was a judgment of value and thus, an
expression of feeling. The only realistic significance that could be assigned to such terms was in
connection with the coercive legal machinery of the state called into action for the purpose of
enforcing a contract or punishing a wrong-doer.
The idea of law as a means of achieving justice is chimerical. It is not founded on justice but on
social needs and pressures. He promoted the method of social welfare which is a guiding motive
for legal activities.
Rylands v. Fletcher- The court decided what the rules as to damages should be for cases in
which something dangerous had escaped from land. The fact that the court reasoned in terms of
obligation on the property owner was illusionary, superfluous and because it mystifies, also
harmful.
Legal activities are indispensable for the existence of society. Social Welfare as a guiding
principle of legal activities are decent food, clothing, shelter, all conceivable material comforts as
well as the protection of spiritual interests.
The contribution of Lundstedt in developing a value neutral realist theory is remarkable as it
stresses that concepts such as right and duty, liability etc. are tools of thought used in deciding
the cases.
Alf Ross- 1899- The Concept of valid law on the analogy of a game of chess being played by
two players and an onlooker who does not know the rules of the game. Human social life
acquires the character of community life from the very fact that a large number of individual
actions are relevant and have significance on set of common conceptions of rules. They
constitute a significant whole bearing same relation to one another as move and counter move.
A norm is a directive which stands in relation of correspondence to social facts. The norm is said
to be the directive in the sense of a meaning contained is a norm only if it corresponds to certain
social facts. The fundamental condition for an existence of a norm must be that it is followed by
in the majority of cases; the pattern of behaviour presented in the directive is followed by
members of the society.
On Law and Justice- Legal Sanction- They are applied as per the decisions of the courts.
Therefore, the existence of a legal norm would have to be derived from an observed regularity in
the court’s decision. A norm may derive from a past decision and it follows from this view that
all norms include those of legislation, should be viewed as directives to courts. Legal rules are
rules about the exercise of force and as such are directed to officials.
Directives and Norms- He contends that from a psychological point of view, there is another set
of norms directed to individual which are followed by them and felt to be binding. The test of
validity of law lies in the predictability of decisions. So valid law means the abstract set of
normative ideas which serves as a scheme of interpretation for the phenomenon of law in action
which again means that these norms are effectively followed.
His contribution is multi-dimensional.
1. He is concerned to divest legal validity from all meta-physical necessities.
2. His thrust is that the legal norms are valid if courts would enforce and predict them. Norms are
essentially addressed to courts rather than to private individuals
3. The natural law philosophy in recognizing the relationship between law and morals is fallacious.

Marxist Theory of Law


Karl marx- 1818-1883- Fredreich Engels- Both of them were the founders of the greatest social
and political movement which began in 19th century and flourished in 20th century as a political
philosophy in Eastern Europe which is the erstwhile Soviet Union and influenced all the
decolonized colonies of the world and is practised in China’s Political Philosophy.
Marx’s view of state and law was co-terminus with the understanding of society and social
process. Marx’s originality of thought lies in the fact that he synthesized almost entire
philosophical thought from Aristotle to Hegel.
The sociological understanding of the society led Marx to pronounce that the desired system
would be a Communist Society based on rational planning, co-operative production and equality
of distribution and most importantly, liberated from all forms of political and bureaucratic
hierarchy.
Marx condemned and rejected the state and money as Bourgeois concept and the proletariat has a
historical mission of emancipating the society as a whole. Law seems to be nothing than a
function of economy without any independent existence.
His classification of society into various classes-
1. The capitalists
2. The Wage Labourers
3. The land owners
This conflict will eventually have to be resolved. The resolution of the conflict will take the
shape of a Proletarian revolution. Once this revolution takes place, it will seize the power of the
state and transform the means of production in the first instance into the state property. The
earlier state of exploitation and representative of class antagonism will be replaced by a state
truly representative of society as a whole which means taking possession of means of production
in the name of society is at the same time its last independent act of a state. The interference of
the state in social relation becomes superfluous in one’s sphere after another and then ceases off
itself. The government of persons is replaced by administration of things and directs the process
of production. However, the Proletarian revolution in order to reach the stage of Communism
shall have to pass through various stages.
1. Establishment of a Proletarian Dictatorship which is essential to convert the capitalist modes of
production to the Proletariat mode of production.
2. Stage of Nationalization of the property and all the capital modes of production.
3. Stage of Socialism as the property is in common ownership, the society at large shall be
responsible for the production and distribution of goods.
As the production of goods in common ownership, the distribution of commodities will have to
follow “from each according to his ability to each according to his needs”.
Inequalities will remain and hence, the need to distribute the goods is inevitable. The ultimate
stage is that of Communism and this state he imagined in his work called “Critique of Gotha
Program-1875”. Communist society will have to develop and emerge from capitalist society and
in respect will carry with it some marks of capitalist society. Accordingly, the individual
producer recedes back from the society what he gave to it by way of labour. If a labourer has
worked for fixed hours of a day, he is entitled to the amount of wages for which he has worked.
He receives a certificate from society that he has furnished such and such amount of labour and
with this certificate he draws from the social stock of means of consumption as much as costs
same amount of labour.
Higher Communist State- Concept of power and labour gets vanished. After production force
increases, then there will be all round development of individual. This we get from “Communist
Manifesto”. In higher form of communist state after enslaving subordination of the individual to
the division of labour and anti-thesis between mental and physical labour has vanished after
labour has become not only a means of life but life’s prime want, after the productive forces have
also increased with the all-round development of individual. And all the springs of the co-
operative wealth flows more abundantly.
The concept of state is a super structure in a capitalist state to organize and uphold class
oppression. The bureaucracy and the executive in a state are for the managing common class and
struggle waged by the society against each other. Law is not based on will but once the bourgeois
state is overthrown by a proletariat, the proletariat state comes into existence. This state is
representative of social will of all the classes. The nexus between safeguarding the private
property by a capitalist state is replaced by a proletariat state which has nationalized all the
private property. However, state and statecraft remains important and integral in the proletarian
society.
E. Pashukanis- 1891-1937- he tried to remove the gloss on law and Marxism as experimented
by the Marxist state. He believed that proletariat law practised in erstwhile Soviet Union needs
alternative general concepts to reinforce Marxist theory of law. Power is collective will as the
rule of law is realized in the bourgeois society to the extent that this society represents a market.
Karl Renner- The institutions of private law and their social functions- It utilized the Marxist
theory of sociology to develop a theory of law. Socialists and Marxists have failed to understand
that new society has always pre-formed in the womb of the old and that is equally true for law.
The process of change from one given order to another is automatic.
Renner confesses that the concept of property in terms of Marx has not remained the same but
the property whether in socialism and capitalism has not remained an instrument of exploitation
rather the natural forces of change have put property into various restrictions be it tenants,
employees or consumers. However, the power of property remains whatsoever the political
character of the state may be.
Natural Law-
Hugo Grotius- Dutch Jurist- Father of International Law- Formulated the doctrine of social
life of men as its unique characteristics for peace and tranquillity with fellowmen according to
the measure of the intelligence with the intelligence of other fellow men with whom he has to
live with. This unique characteristic is to be found in natural law because natural law is directly
proportional to human intelligence. Natural Law is superior to all law as it is dictated by reason
and any law which is not in conformity with rational nature is either irrational or immoral. He
believed whole universe is regulated by the law of nature.
He also developed the concept of “Pacta sunt Servanda”. He conceptualized the notion of a
state as an association of the freemen joined together for the enjoyment of rights and for their
common interest. This association is a result of a contract in which people have transferred their
sovereign power to a ruler who has acquired it as his private power and whose actions under
ordinary circumstances are not subject to legal control. However, the ruler is bound to observe
the natural law and the law of nations. Grotius uses the construction of social contract for a
twofold purpose, internally for the justification of the absolute duty of obedience of the people to
the government, internationally to create a basis for legally binding and stable relations among
the states. Grotius puts forward social contract as an actual fact in human history. The
constitution of each state, Grotius thinks, had been precedent by a Social Contract by means of
which each people had chosen the form of government which they consider most suitable for
themselves.
The law of war and peace- Natural law is the dictate of the right reason which points out that an
act, according as it is or is not in conformity with rational nature has in it a quality of moral base
and moral necessity.
Immanuel Kant- He gave modern thinking a new basis which no subsequent philosophy would
ignore. In ‘Critique of Pure Reason’, he set for himself the task of analysing the world as it
appears to human consciousness. Nature follows necessity but human mind is free because it can
set itself purposes and free will. Compulsion is essential to law and a right is characterized by the
power to compel. The aim of Kant was a universal world state, the establishment of a republican
constitution based on freedom and equality of states was a step towards league of states to secure
peace. Kant was doubtful of the practical possibility of the state of nations and he saw no
possibility of international law without an international authority superior to the states.
He was a German Idealist. He based his theory on pure reason. He says man is a part of reality
and is subject to its laws (sovereign’s laws). Though, it is through will of the people, the
sovereign comes into existence, but still the man is not free. His reason and inner consciousness
makes him a free moral agent, so the ultimate aim of the individual should be a life of free will
and it is when free will is exercised according to reason and uncontaminated by emotions, that
free willing individuals can live together.
People are morally free when they are able to obey or disobey a moral law but since morality and
freedom are same, an individual can be forced to obey the law without forcing the freedom
provided by law in conformity with morality.
He talks about proclamation of autonomy of reason and will. Human reason is law creating and
constitutes moral law. Freedom in law means freedom from arbitrary subjection to another. Law
is the complex totality of conditions in which maximum freedom is possible for all.
The sole function of the state is to ensure observance of the law. The individual should not allow
himself to be made a means to an end as he is an end in himself, if need be he should retire from
society if his free will would involve him in wrong doing.
Society unregulated by right results in violence. Men have an obligation to enter into society and
avoid doing wrong to others. Such a society has to be regulated by compulsory laws. Those laws
are derived by pure reason of the idea of social union; men will be able to live in peace.
What is needed is a rule of law and not of man. Kant’s ideal of laws does not bear any relation to
any actual system of law; it is purely an ideal to serve as a standard of comparison and not as a
criterion for the validity of law. Kant considered political power as conditioned by the need of
rendering each man’s right effective while limiting it at the same time through the legal rights of
others. Only the collective universal will armed with absolute power can give security to all. This
transfer of power is based on social contract which is not a historical fact but it is an idea of
reason. The Social Contract is so sacred that there is an absolute duty to obey the existing
legislative power. Rebellion is not justified. Therefore, he considers a republican and
representative state is an ideal state. Only the united will of all can institute legislation and law is
just only when it is at least possible when the whole population should agree to it. He was in
favour of separation of power and was opposed to privileges of birth and established church and
autonomy of corporations. He was in favour of free speech. The function of the state was
essentially that of the protector and guardian of that law.
George Wilhelm Frederich Hegel- 1770-1831- Theoretical explanation of the universe- He
developed a theory called ideal dialectism. It is a way of investigating the truth of opinions by
discussion and logical argument. Later on, Karl Marx converted this into material dialectism and
political idea and statecraft. The basic tenets of Hegel philosophy is neo-Kantian natural law. His
system is a monistic one. The idea unfolds from the simple to the complex by means of the
dialectical process and any face of reality is based on reason. The history of civilization does not
depend on unfolding of events but there is an objective spirit as standard bearer of reason
unfolding human civilization. What is reasonable is real and what is real is reasonable. The
moving spirit of civilization is the “idea”. This idea is responsible for the movement of the
civilization both in terms of leadership thrown up in the movement of the civilization. All the
social systems are on a move from one stage to another.
The first stage of conceiving the idea is thesis which is from the standpoint of the one’s
observation, a given concept of the civilization from that standpoint. However, by the time thesis
is conceived, the opposite of idea of thesis is hidden within the idea. The principle or doctrine
which is taken at the first starting point would be thesis but these rules and principles have a
counter point inbuilt in them which when reduced to tangible categories may become ‘anti-
thesis’ of them. However, the antithesis of idea of the doctrines, rules would before becoming
concrete and metamorphosed would enter into synthesis, new phase and the synthesis would
again become thesis as the content and structure of these rules, principles and doctrines. This is
an endless circle and is true human history.
The history of civilization does not depend upon unfolding of events but there is an objective
spirit. The nations are on a move to achieve this freedom. Once the nations achieve these ideals,
the young nations would strive to do the same. Law essentially is made to understand the idea of
freedom from its external manifestations. He used the metaphor of natural law that man is free,
passions, irrational desires and material interest which have to be subordinated to his rational and
spiritual self. The mandate of natural is that man should lead a life governed by reason and
respect the reason of others.
Property- Private Property- State has the ultimate control of the property.
Contract- Contract is the capacity of the individual to acquire or dispose of property.
Wrong- It is an act or disposition which negates the will of others.
Georgio Del Vecchio- He talked about Ideals of Law as compared to positive law. Ideals of law
should correspond to natural law is higher law and provides criteria for evaluating positive law
and to measure its elements of justice. It is the basic principle which guides legal and human
evolution. The respect for human autonomy should be there.
His theory takes experience from Kantian metaphor which is the basis of justice. Earlier
conceptions of natural law such as consent, liberty, representative democracy and conscience
which have to a great extent recognized in positive law will further impact the evolution of
positive law. The law faces a struggle and this struggle leads again to evolution of law.
Though, he basis his thesis on Kant but he differs in one aspect. The state is not only concerned
with making of law but also with enforcement of law and should concern with social, political
and economic well-being of social life of human beings.
The contribution of Vecchio in reviving of natural law is that search of ideals for reforming
positive law lies in natural law as natural law is part of the human nature.
His work displays a profusion of philosophical, historical and juristic learning. Law is not only
formal but has a special meaning and an implicit faculty of valuation. Law is a phenomenon of
nature and collected by history.